TEAM CODE – RCL - 03

BEFORE THE HON’BLE SUPREME COURT

OF INDIA
(CRIMINAL APPELLATE JURISDICTION)

S.L.P. ( Crl. ) NO. ______ OF 2015

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDIA

Neeraj ......... [Appellant(s)]

versus

State of Uttar Pradesh .........[Respondent(s)]

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE CHIEF JUSTICE

AND HIS LORDSHIP’S COMPANION JUSTICES OF THE HON’BLE
SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

8th RAYAT COLLEGE OF LAW NATIONAL MOOT COURT COMPETITION,

2018
 MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS 2

 LIST OF AUTHORITIES 3-6

 STATEMENT OF JURISDICTION 7

 STATEMENT OF FACTS 8-9

 STATEMENT OF ISSUES RAISED 10

 SUMMARY OF PLEADINGS 11-13

 PLEADINGS SUBMITTED 14-35

I. WHETHER THE APPEAL IS MAINTAINABLE?........................................14-17

II. WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT

QUANTUM OF PUNISHMENT AS PER SECTIONS UNDER WHICH THE

ACCUSED HAS BEEN CHARGED?.............................................................18-24

III. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS

DECISION?......................................................................................................25-29

IV. WHETHER THE BAIL SHOULD BE GRANTED BY REDUCING THE

APPELLANT’S LIFE IMPRISONMENT?.....................................................30-35

 PRAYER 36

 VERIFICATION 37

Page | 1
 MEMORIAL ON BEHALF OF THE APPELLANT

LIST OF ABBREVIATIONS

Abbreviation Meaning
@ alias
& and
AIR All India Reporter
Art. Article
Assn. Association
CBI Central Bureau of Investigation
COI Constitution of India
Cri. Criminal
Cr.L.J. Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Govt. Government
HC High Court
Hon’ble Honorable
i.e. that is
IPC Indian Penal Code
Ltd. Limited
Mohd. Mohammed
NCT National Capital Territory
Ors. Others
P. Private
R.I. Rigorous Imprisonment
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
SLP Special Leave Petition
u/s Under Section
v. versus

Page | 2
 MEMORIAL ON BEHALF OF THE APPELLANT

LIST OF AUTHORITIES

A. CASES REFERRED–

Page No.

1. Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648..........................22

2. Anurag Baitha v. State of Bihar, AIR 1987 Patna 274..........................................32, 33

3. Arunachalam v. P. S. R. Sadhanantham, AIR 1979 SC 1284......................................15

4. Babu Singh and Ors v. The State of Uttar Pradesh, (1978) 1 SCC 579.......................32

5. Bachan Singh v. State of Punjab, AIR 1980 SC 898...................................................23

6. Bavo @ Manubhai Ambala Thakore v. State of Gujarat, (2012) 2 SCC 684..............17

7. Chandra Shekhar Bharti v. State of Bihar, decided on 27 January 2014.....................33

8. Chawla v. State of Haryana, AIR 1974 SC 1039.........................................................22

9. Dalbir Kaur v. State of Punjab, 1977 Cr.L.J. 273........................................................15

10. Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406...........................16

11. Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal, AIR

1955 SC 65...................................................................................................................17

12. Dharam Pal v. State Of Haryana, 1999 (4) RCR (Cri.) 600........................................33

13. Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799..................................22

14. Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545................................20, 26, 28

15. Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh,

(1978) 1 SCC 240; (1978) 2 SCR 371.......................................................................31

16. Gurdev Singh v. State of Punjab, (2003) 7 SCC 258...................................................26

17. Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635...........................................22

18. Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734...........................................22

19. Hazara Singh v. Raj Kumar, (2013) 9 SCC 516..............................................20, 22, 28

Page | 3
 MEMORIAL ON BEHALF OF THE APPELLANT

20. Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC

1360..............................................................................................................................32

21. Ishvarbhai Fuljibhi Patni v. State of Gujarat, 1995 (1) SCC 178; 1995 SCC (Cri.)

222................................................................................................................................27

22. Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532.................................................22

23. Jamshed Hormusji Wadia v. Board of Trustees, (2004) 3 SCC 214...........................15

24. Kashmira Singh v. State of Punjab, (1977) 4 SCC 291...............................................30

25. Khem Karan v. The State of Uttar Pradesh, AIR 1974 SC 1567.................................22

26. Machhi Singh v. State of Punjab, (1983) 3 SCC 470..................................................23

27. Maneka Gandhi v. Union of India, AIR 1978 SC 597.................................................31

28. Mohd. Aslam v. State of Uttar Pradesh, AIR 1974 SC 678.........................................22

29. M/S. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207.........16

30. Pawan Kumar v. State of Haryana, (2003) 11 SCC 241..............................................15

31. Ram Shankar v. The State of Madhya Pradesh, AIR 1981 SC 644.............................22

32. Sadhu Singh v. Pepsu, AIR 1954 SC 271....................................................................14

33. Sanjay Chandra v. CBI, 2011 (4) SCC 2913...............................................................34

34. Sanjay v. State of Uttar Pradesh, 2016 (3) SCC 62.....................................................22

35. Santa Singh v. State of Punjab, AIR 1976 SC 2386..............................................17, 22

36. Satbir v. Surat Singh, (1997) 4 SCC 192.....................................................................16

37. Sevaka Perumal v. State of Tamil Nadu, AIR 1991 SC 1463.....................................22

38. Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359.......................................22

39. Shyam Narain v. The State of Rajasthan, 1974 Cri.L.J. 1006.....................................22

40. Smt. Akhtari Bi v. State of Madhya Pradesh, AIR 2001 SC 1528; (2001) 4 SCC

355................................................................................................................................31

41. State of Andhra Pradesh v. Polamala Raju & Rajarao, (2000) 7 SCC 75...................27

Page | 4
 MEMORIAL ON BEHALF OF THE APPELLANT

42. State of Himachal Pradesh v. Nirmala Devi, 2017(4) Scale 442.................................23

43. State of Madhya Pradesh v. Bablu Natt, (2009) 2 SCC 272........................................27

44. State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222................................22

45. State of Punjab v. Prem Sagar and Ors., (2008) 7 SCC 550............................22, 26, 28

46. State of Uttar Pradesh v. Kamarujjama, (2002) 3 SCC 342........................................27

47. Suddu Kumar v. State of Bihar, Criminal Appeal (DB) No.583 of 2015....................34

48. Sumer Singh v. Surajbhan Singh, 2014 (7) SCC 323..................................................20

49. Sunil Dutt Sharma v. State (Govt of NCT of Delhi), AIR 2013 SC 2342...................24

50. Surinder Singh alias Shingara Singh v. State of Punjab, (2005) 7 SCC 387...............32

51. Tarlok Singh v. State of Punjab, 1977 AIR 1747........................................................17

52. Ubed, son of Latifur Rahman v. The State of Bihar, 30 January, 2017, Criminal

Appeal (SJ) No.167 of 2015........................................................................................32

53. Vasant Laxman More v. State of Maharashtra, AIR 1974 SC 1697............................22

54. Vivian Rodrick v. The State of West Bengal, AIR 1971 SC 1584; (1971) 1 SCC

468...............................................................................................................................22

B. STATUTES/ BARE ACTS REFERRED–

 The Constitution of India, 1950

 The Indian Penal Code, 1860

 The Code of Criminal Procedure, 1973

C. JOURNALS REFERRED–

 All India Reporter

 Criminal Law Journal

 Supreme Court Cases

 Supreme Court Reporter

Page | 5
 MEMORIAL ON BEHALF OF THE APPELLANT

D. BOOKS REFERRED–

 Constitutional Law of India, Dr. Narender Kumar – 9th Edition, 2016

 Ratanlal and Dhirajlal’s The Code of Criminal Procedure – 22nd Edition, 2017

 The Code of Criminal Procedure, 1973, S.N. Mishra–20th Edition, 2016

 R.V. Kelkar’s Criminal Procedure–6th Edition, reprint 2015

 Indian Penal Code, Prof. S.N. Mishra–20th Edition, 2016

E. LEGAL DATABASES AND OTHER INTERNET SOURCES REFERRED–

 www.scconline.com

 www.manupatra.com

 www.livelaw.in

 www.judis.nic.in

 www.indiankannon.org

 www.legalindia.com

Page | 6
 MEMORIAL ON BEHALF OF THE APPELLANT

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of India by way of Special Leave

to Appeal under Article 136 of the Constitution of India and the Hon’ble Supreme Court

of India has the inherent jurisdiction to try, entertain, and dispose of the present matter by

virtue of the said Article i.e. Article 136 of the Constitution of India. Article 136 of the

Constitution of India reads as follows–

“136. Special leave to appeal by the Supreme Court–

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant

special leave to appeal from any judgment, decree, determination, sentence or order in any

cause or matter passed or made by any Court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order

passed or made by any Court or tribunal constituted by or under any law relating to the

Armed Forces.”1

1
The Indian Constitution, 1950.

Page | 7
 MEMORIAL ON BEHALF OF THE APPELLANT

STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case

are summarized as follows–

1.

That on 08-10-2004 at about 07:30 PM when Rahul, the complainant, reached near the house

of Umesh-his paternal uncle he heard noise coming out from that house. After entering the

house he saw Kartik, Pulkit and Neeraj, all from the same locality, armed with country made

pistols in their hands, abusing his cousin Yogesh, Shubham and his niece Ravita, who then

also fired from their pistols with the intention of killing them.

2.

That the bullet fired by Kartik injured Yogesh, that of Pulkit injured Ravita on her abdomen,

who was pregnant, and the bullet fired by Neeraj injured Shubham in his Head, leaving all of

them in critical state. The incident was witnessed by D,E,F etc. Rahul then gave written

report at the Police Station after getting it written by P Singh on 08-10-2004 at 08:45 PM.

3.

That on the same day the investigation was conducted by Sub-Inspector V Singh and site

plan was prepared and the statements of the witnesses were also recorded. Pulkit died during

the investigation; therefore, charge-sheet was filed against Kartik and Neeraj for offences

punishable u/s 452, 307, 316 and 504 of IPC. Kartik was then declared as Juvenile to be tried

separately. The case was committed to the Court of Sessions for trial on 18-05-2005. The

trial was proceeded as S.T. No. 390 of 2005 in the Court of Additional Sessions Judge.

Page | 8
 MEMORIAL ON BEHALF OF THE APPELLANT

4.

That Neeraj was charged for the offences u/s 452, 307/34, 504 and 316/34 of IPC. The Trial

Court by Judgment dated 11-12-2007 convicted the appellant-accused for the offences

punishable u/s 452, 307/34, 504 and 316/34 of IPC and sentenced him to Seven years’ R.I.

with fine of ₹ 5000/- u/s 452 IPC, in default of payment of fine, to further undergo Three

Months’ simple imprisonment, Imprisonment for Life with fine of ₹10,000/- u/s 307/34 IPC,

in default of payment of fine, to further undergo Six months’ simple imprisonment, Ten

years’ R.I. with fine of ₹ 5000/- u/s 316/34 IPC, in default of payment of fine, to further

undergo simple imprisonment for Three months and Two years’ R.I. with fine of ₹ 1000/- u/s

504 IPC, in default of payment of fine, to further undergo simple imprisonment of One

month. All the sentences ordered to run concurrently.

5.

That, aggrieved by the Judgment of the Trial Court, the appellant-accused preferred an

Appeal being Criminal Appeal before the Hon’ble Allahabad High Court. The High Court,

by Judgment dated 21-04-2015, dismissed the appeal and upheld the judgment of conviction

and sentence passed by the Trial Court.

6.

That against the said judgment of the High Court, the appellant-accused has preferred this

appeal by way of Special Leave before this Court i.e., Hon’ble Supreme Court of India

urging that he has already undergone custody around 10 to 12 years till date and hence, it

would be just and proper to reduce his sentence to already undergone and he be set at liberty

upholding his conviction.

Page | 9
 MEMORIAL ON BEHALF OF THE APPELLANT

STATEMENT OF ISSUES RAISED

I. WHETHER THE APPEAL IS MAINTAINABLE?

II. WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT

QUANTUM OF PUNISHMENT AS PER THE SECTIONS UNDER WHICH THE

ACCUSED HAS BEEN CHARGED?

III. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION?

IV. WHETHER THE BAIL SHOULD BE GRANTED BY REDUCING THE

APPELLANT’S LIFE IMPRISONMENT?

Page | 10
 MEMORIAL ON BEHALF OF THE APPELLANT

SUMMARY OF PLEADINGS

I. WHETHER THE APPEAL IS MAINTAINABLE?

Art. 136 is very broad-based & confers discretion on the Court to hear “in any cause or

matter. Trial Court has acted mechanically and arbitrarily having ignored the gravity of

the offence to be low by the reason of the fact that victim has survived. The HC also

erred in affirming the order of conviction imposing the maximum sentence under normal

circumstances. The jurisdiction conferred under Art. 136 on the SC is corrective one &

not a restrictive one. The SC has held that under Art. 136 the SC has wide power to

interfere and correct the judgment and order passed by any Court or tribunal in India. In

addition to the appellate power, the Court has special residuary power to entertain appeal

against any order of any Court. if the Court does not interfere in cases where a clear case

of miscarriage of justice is made out, the Court would be failing in its responsibility

under Art. 142 of COI.

II. WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT

QUANTUM OF PUNISHMENT AS PER THE SECTIONS UNDER WHICH THE

ACCUSED HAS BEEN CHARGED?

The Statutory Power of Trial Court u/s 28 of Cr.P.C. to grant that quantum of punishment

is not unqualified and is subject to and guided by certain general Judicial Principles and

guidelines and in this case such principles and guidelines have been clearly ignored by

the trial Court. It is also pertinent to note that the fact that victim-Shubham, to whom the

appellant caused the injury by gunshot having survived, the Courts below should have

taken into account this fact and awarded the sentence in the first part of Sec. 307 IPC,

which could extend only upto 10 years and fine. Therefore, sentence of imprisonment for

Page | 11
 MEMORIAL ON BEHALF OF THE APPELLANT

life for offence u/s 307 is excessive. The legislature has bestowed upon the judiciary this

enormous discretion in the sentencing policy, which must be exercised with utmost care

and caution. It may be pointed out here that the severe sentence defeats the objective of

punishment. The extreme penalty can be inflicted only in gravest cases of extreme

culpability and in making the choice of sentence due regard must be paid to the

circumstances of the offender also.

III. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION?

The HC had made an erroneous decision by reason that it had affirmed the already

erroneous decision of the Trial Court, the error which was apparent on the face of the

record, while ignoring the important facts and considerations. A significant thing to note

is that underlying principle of our sentencing jurisprudence is reformation and another

significant observation to note is that the courts while imposing sentence must take into

consideration the principles applicable thereto. It requires application of mind but in the

present case both the courts below erred in ignoring the same. There are many

unsatisfactory features in the judgment of the Trial Court which give rise to a fair

assumption that the appellant was likely to succeed in the appeal but, which had been

ignored by the HC, hence, leading to an erroneous decision.

IV. WHETHER THE BAIL SHOULD BE GRANTED BY REDUCING THE

APPELLANT’S LIFE IMPRISONMENT?

It is quite well understood and accepted that the appeal by the appellant is not going be

heard for the next two-three years, thus, leading to unreasonable delay, it is humbly

submitted that appellant is entitled to get the Bail. The Apex Court has ruled out that so

long as this Court is not in a position to hear the appeal of an accused within a reasonable

period of time, the Court should ordinarily, unless there are cogent grounds for acting

Page | 12
 MEMORIAL ON BEHALF OF THE APPELLANT

otherwise, release the accused on bail in cases where special leave has been granted to the

accused to appeal against his conviction and sentence. Inordinate delay in hearing on

substantive appeals because of Court’s inability to do so would be extremely relevant

factor for grant of bail. It was directed by the Court that life convicts, who have

undergone at least five years of imprisonment of which at least three years should be after

conviction, should be released on bail pending the hearing of their appeals should they

make an application for this purpose.

Page | 13
 MEMORIAL ON BEHALF OF THE APPELLANT

PLEADINGS SUBMITTED

I. WHETHER THE APPEAL IS MAINTAINABLE?

It is humbly submitted as follows–

1.1 That, the Special Leave Petition (hereinafter referred to as SLP) filed by the Appellant is

maintainable by virtue of Article 136 of the Constitution of India. Art. 136 of the COI

read as follows–

“136. Special leave to appeal by the Supreme Court–

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,

grant special leave to appeal from any judgment, decree, determination, sentence or

order in any cause or matter passed or made by any Court or tribunal in the territory of

India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order

passed or made by any Court or tribunal constituted by or under any law relating to the

Armed Forces.”2

1.2 It is pertinent to note that the scope of Art. 134 providing appeals to the SC in criminal

matters is limited whereas that of Art. 136 is very broad-based & confers discretion on

the Court to hear “in any cause or matter”. Therefore, criminal appeals may be brought to

the SC under Art. 136 when these are not covered by Art. 134.3

1.3 In the present case Trial Court has acted mechanically and arbitrarily having ignored the

gravity of the offence to be low by reason of the fact that victim has survived, making the

2
The Indian Constitution, 1950.
3
Sadhu Singh v. Pepsu, AIR 1954 SC 271.

Page | 14
 MEMORIAL ON BEHALF OF THE APPELLANT

case an ordinary in circumstances, and granted maximum punishment for the offence,

which is otherwise meant only for rarest of rare cases, and the High Court also erred in

affirming such order, which have made the case itself a case leading to ‘Grave Injustice

and Miscarriage of Justice’, thus, qualifying to be covered up under Art. 136. And a

serious miscarriage of justice, caused either by an error of law or procedure, can lead the

Supreme Court to interfere in matters of Criminal Appeals.4

1.4 In the present case the HC erred in affirming the order of conviction imposing the

maximum sentence under normal circumstances. The jurisdiction conferred under Art.

136 on the SC is corrective one & not a restrictive one. A duty is enjoined upon the SC to

exercise its power by setting right the illegality in the judgments, it is well-settled that

illegality must not be allowed to be perpetrated & failure by the SC to interfere with the

same would amount to allowing the illegality to be perpetuated.5 The Principle is that the

Court should not do injustice nor allow injustice to be perpetuated just for the sake of

upholding technicalities.6

1.5 In the case of Arunachalam v. P. S. R. Sadhanantham,7 O. Chinnappa Reddy J. has

observed, “It is now the well established practice of this Court to permit the invocation of

the power under Article 136 only in very exceptional circumstances, as when a question

of law of general public importance arises or a decision shocks the conscience of the

Court. But, within the restrictions imposed by itself, this Court has the undoubted power

to interfere even with findings of fact making no distinction between judgment of

4
Dalbir Kaur v. State of Punjab, 1977 Cr.L.J. 273.
5
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
6
Jamshed Hormusji Wadia v. Board of Trustees, (2004) 3 SCC 214.
7
AIR 1979 SC 1284.

Page | 15
 MEMORIAL ON BEHALF OF THE APPELLANT

acquittal and conviction, if the High Court, in arriving at those findings, has acted

“perversely or otherwise improperly.”

1.6 In Delhi Judicial Service Assn. v. State of Gujarat,8 the SC has held that under Art.

136 the SC has wide power to interfere and correct the judgment and order passed by any

Court or tribunal in India. In addition to the appellate power, the Court has special

residuary power to entertain appeal against any order of any Court.

1.7 Further it has been duly observed by the SC that if the appellant proves that concurrent

decisions of two or more Courts or Tribunals are manifestly unjust, it is not only the right

but the duty of this Court to remedy the injustice.9

1.8 Hon`ble Mr. Justice P. Sathasivam has, in a Conference on ‘CRIMINAL

JURISPRUDENCE OF THE SUPREME COURT’, while highlighting the importance

of the Supreme Court to do Justice, said that “In ordinary circumstances, the Apex Court

does not interfere with the acquittal or conviction order of the High Court or lower

Courts. But as has been held in Satbir v. Surat Singh,10 the Supreme Court has the power

and duty under Art. 142 to do complete justice, and if the Court does not interfere in cases

where a clear case of miscarriage of justice is made out, the Court would be failing in its

responsibility.”11

1.9 A pertinent proposition laid by the SC is that “it is plain that when the Court reaches the

conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal has not

8
(1991) 4 SCC 406.
9
M/S. Variety Emporium v. V. R. M. Mohd. Ibrahim Naina, AIR 1985 SC 207.
10
(1997) 4 SCC 192.
11
Speech Delivered by Hon`ble Mr. Justice P. Sathasivam, Judge, Supreme Court of India at South Zone
Regional Judicial Conference on Enhancing Timely Justice: Strengthening Criminal Justice Administration
on CRIMINAL JURISPRUDENCE OF THE SUPREME COURT.

Page | 16
 MEMORIAL ON BEHALF OF THE APPELLANT

given a fair deal to a litigant, then no technical hurdles of any kind like the finality of

finding of facts or otherwise can stand in the way of the exercise of this special power

because the whole intent and purpose of the article is that it is the duty of the Supreme

Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and

tribunals because certain laws have made the decisions of those Courts or tribunals final

and conclusive.”12

1.10 Further, it may be desirable to consider that Hon’ble SC has in many cases granted

Special Leave to Appeal limited to the question of Sentence among which Tarlok Singh

v. State of Punjab13, Santa Singh v. State Of Punjab14 and Bavo @ Manubhai

Ambala Thakore v. State of Gujarat15 are the leading ones.

1.11 Moreover, the matter of imposition of Life Imprisonment in the case of attempt to

murder u/s 307 IPC, where the circumstances being no extraordinary, is violative of Art.

21 of the COI. Art. 21 provides that ‘No person shall be deprived of his life or personal

liberty except according to procedure established by law’, where ‘procedure established

by law means’ the procedure duly established, recognized and warranted by law. In this

line, law never allows, calls for or permits arbitrariness and if there exists arbitrariness, it

is ultra-vires the procedure established by law. Therefore, anything ultra-vires the law is

bound to be violative of the Constitutional spirit.

1.12 The extent of injustice caused to the appellant-accused demands the intervention of

the Hon’ble Apex Court. Hence, the present petition is maintainable.

12
Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal, AIR 1955 SC 65.
13
1977 AIR 1747.
14
AIR 1976 SC 2386.
15
(2012) 2 SCC 684.

Page | 17
 MEMORIAL ON BEHALF OF THE APPELLANT

II WHETHER THE TRIAL COURT HAS THE POWER TO GRANT THAT

QUANTUM OF PUNISHMENT AS PER THE SECTIONS UNDER WHICH THE

ACCUSED HAS BEEN CHARGED?

It is humbly submitted as follows–

2.1 That, No denying that Trial Court has the Statutory Power to grant that quantum of

punishment by virtue of sub-sec. (2) of Sec. 28 of the Cr.P.C. but insofar as it relates to

sentencing an accused, it is not unqualified and is subject to and guided by certain general

Judicial Principles and guidelines which this Hon’ble Court has, in the absence of

Codified General Sentencing Guidelines, carved by great observations and precious time.

And in this very case such principles and guidelines have been clearly ignored by the trial

Court. In such an event, such unguided and unprincipled exercise of the Power of Judicial

Discretion becomes arbitrary and hence, the subject-matter of question and scrutiny.

Sec. 28 of Cr. P.C. reads as under:

“28. Sentences which High Courts and Sessions Judges may pass.

(1) A High Court may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by

law; but any sentence of death passed by any such Judge shall be subject to confirmation

by the High Court.

(3) An Assistant Sessions Judge may pass any sentence authorized by law except a

sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten

years.”16

16
The Code of Criminal Proedure, 1973.

Page | 18
 MEMORIAL ON BEHALF OF THE APPELLANT

2.2 It is correct that generally in case of attempt to murder lesser punishment than that of

imprisonment for life is awarded, an obvious reason for which may be that attempt to

murder is undoubtedly lesser act than successfully commissioned offence of murder. This

general rule and principle has been overlooked by the Trial Court.

2.3 It is also pertinent to note that the fact that victim-Shubham, to whom the appellant

caused the injury by gunshot having survived, the Courts below should have taken into

account this fact and awarded the sentence in the first part of Sec. 307 IPC, which could

extend only upto 10 years and fine. Therefore, sentence of imprisonment for life for

offence u/s 307 is excessive, which has been awarded in the arbitrary and mechanical

exercise of the judicial discretion by the Trial Judge ignoring the well established

guidelines and principles laid down by this Court in concrete cases before it.

Sec. 307 IPC reads as follows:

“307. Attempt to murder.—Whoever does any act with such intention or knowledge, and

under such circumstances that, if he by that act caused death, he would be guilty of

murder, shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by

such act, the offender shall be liable either to imprisonment for life, or to such

punishment as is hereinbefore mentioned.

Attempts by life convicts.—When any person offending under this section is under

sentence of imprisonment for life, he may, if hurt is caused, be punished with death.”17

17
The Indian Penal Code, 1860.

Page | 19
 MEMORIAL ON BEHALF OF THE APPELLANT

2.4 The maximum punishment provided u/s 307 is imprisonment for life or a term which may

extend to 10 years. Although Sec. 307 does not expressly state the minimum sentence to

be imposed, it is the duty of the Courts to consider all the relevant factors to impose an

appropriate sentence. The legislature has bestowed upon the judiciary this enormous

discretion in the sentencing policy, which must be exercised with utmost care and

caution. The punishment awarded should be directly proportionate to the nature and

magnitude of the offence.18

2.5 Just punishment is the collective cry of the society. While the collective cry has to be kept

uppermost in the mind, simultaneously the principle of proportionality between the crime

and punishment cannot be totally brushed aside. The principle of just punishment is the

bedrock of sentencing in respect of a criminal offence. A punishment should not be

disproportionately excessive. The concept of proportionality allows a significant

discretion to the Judge but the same has to be guided by certain principles.19

2.6 This Court has made a very significant observation in the case of Sumer Singh v.

Surajbhan Singh20 at para 29 and 30, regarding discretion in sentencing as follows–

“29. It is seemly to state here that though the question of sentence is a

matter of discretion, yet the said discretion cannot be used by a Court of law

in a fanciful and whimsical manner. Very strong reasons on consideration

of the relevant factors have to form the fulcrum for lenient use of the said

discretion. It is because the ringing of poignant and inimitable expression,

18
Hazara Singh v. Raj Kumar, (2013) 9 SCC 516.
19
Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545.
20
2014 (7) SCC 323.

Page | 20
 MEMORIAL ON BEHALF OF THE APPELLANT

in a way, the warning of Benjamin N. Cardozo in The Nature of the

Judicial Process[23]:

“The Judge even when he is free, is still not wholly free. He is not to

innovate at pleasure. He is not a knight errant roaming at will in pursuit of

his own ideal of beauty or of goodness. He is to draw his inspiration from

consecrated principles. He is not to yield to spasmodic sentiment, to vague

and unregulated benevolence. He is to exercise a discretion informed by

tradition, methodized by analogy, disciplined by system, and subordinated

to ‘the primordial necessity of order in social life’.”

30. In this regard, we may usefully quote a passage from Ramji Dayawala

& Sons (P.) Ltd. v. Invest Import[24]: -

“… when it is said that a matter is within the discretion of the Court it is to

be exercised according to well established judicial principles, according to

reason and fair play, and not according to whim and caprice. ‘Discretion’,

said Lord Mansfield in R. v. Wilkes, ((1770) 98 ER 327), ‘when applied to

a Court of justice, means sound discretion guided by law. It must be

governed by rule, not by humour; it must not be arbitrary, vague, and

fanciful, but legal and regular’ (see Craies on Statute Law, 6th Edn., p.

273).”

2.7 Further on many occasions it has been duly held, observed and reiterated that Nature of

the offence, the manner in which it is committed, the weapon used, motive behind

commission, gravity of the offence, the offender himself, mental age of the offender,

mitigating, aggravating and extenuating facts are all relevant factors that goes into

Page | 21
 MEMORIAL ON BEHALF OF THE APPELLANT

consideration while determining a just and adequate sentence.21 But the Trial Court has

ignored these determinants.

2.8 In considering the question of an appropriate sentence to be awarded, a skillful balance

between the competitive claims of deterrent and reformative theories of punishment has

to be adjusted, in order to meet the ends of justice. It may be pointed out here that the

severe sentence defeats the objective of punishment. The more severe the sentence, the

less are chances of rehabilitation of the offenders.22 Further, the Court observed that the

maximum penalty for any offence is meant for only the worst cases.23

2.9 However, in India, the view always has been that the punishment must be proportionate

to the crime. Applicability of the said principle in all situations, however, is open to

question. Judicial discretion must be exercised objectively having regard to the facts and

circumstances of each case.24

2.10 In the case of Sanjay v. State of Uttar Pradesh25, the SC altered the conviction of

the accused under Sec. 302 to Sec 304 Part II of IPC relying merely on the fact that the

deceased lived for Sixty Two days after having been discharged from the Hospital under

21
Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532; Santa Singh v. State of Punjab, AIR 1976 SC 2386;
Hazara Singh v. Raj Kumar, (2013) 9 SCC 516; Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734;
Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359; Alister Anthony Pareira v. State of Maharashtra,
(2012) 2 SCC 648; Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635; Sevaka Perumal v. State of
Tamil Nadu, AIR 1991 SC 1463; State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222.
22
Shyam Narain v. The State of Rajasthan, 1974 Cri.L.J. 1006.
23
Vivian Rodrick v. The State of West Bengal, AIR 1971 SC 1584; (1971) 1 SCC 468; Chawla v. State of
Haryana, AIR 1974 SC 1039; Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799; Khem Karan v.
The State of Uttar Pradesh, AIR 1974 SC 1567; Vasant Laxman More v. State of Maharashtra, AIR 1974 SC
1697; Mohd. Aslam v. State of Uttar Pradesh, AIR 1974 SC 678; Ram Shankar v. The State of Madhya
Pradesh, AIR 1981 SC 644.
24
State of Punjab v. Prem Sagar and Ors., (2008) 7 SCC 550.
25
2016 (3) SCC 62.

Page | 22
 MEMORIAL ON BEHALF OF THE APPELLANT

stable and normal condition, before dying due to Septicaemia, though it developed of

injury caused by the accused in his head, the vital point. In place of Life Imprisonment,

the Court sentenced the accused to Ten Years’ R.I.

2.11 In an another case involving a charge u/s 307 IPC along with others, the Sessions

Judge inflicted upon the Respondent the punishments of simple imprisonment for a

period of only Two years and fine of ₹ 2,000, in default of payment of which to further

undergo imprisonment for a term of three months, for each offence for which he was

punishable.26

27
2.12 In Bachan Singh v , the Hon'ble Apex Court, while interpreting

Sec. 354(3) and 235(2) of Cr.P.C. elaborated two aspects, firstly that the extreme penalty

can be inflicted only in gravest cases of extreme culpability and secondly, in making the

choice of sentence due regard must be paid to the circumstances of the offender also. In

the same case it was observed that Life Imprisonment is the rule and death sentence is an

exception.

2.13 In Machhi Singh v. State of Punjab28, the Apex Court supplemented the principles

laid down in Bachan Singh’s case with a few more elaborate guidelines regarding the

test of 'rarest of rare' cases as given below–

a) Is there something uncommon about the crime which renders sentence of

imprisonment for life inadequate and calls for a death sentence?

26
State of Himachal Pradesh v. Nirmala Devi, 2017(4) Scale 442.
27
AIR 1980 SC 898.
28
(1983) 3 SCC 470.

Page | 23
 MEMORIAL ON BEHALF OF THE APPELLANT

b) Are the circumstances of the crime such that there is no alternative but to impose

death sentence even after according maximum weightage to the mitigating

circumstances which speak in favour of the offender ?

From the usage of the term ‘death sentence’, the above laid two guidelines are interpreted

in respect of and as ‘for and applicable to the cases awarding maximum punishment’ and

interpreting that further, forming its applicability to the present case, as it involves

maximum punishment, the present case gives out negative answers to both the guidelines.

In such case, awarding maximum punishment is not justified, is arbitrary, and is out of

principles.

2.14 In Sunil Dutt Sharma v. State (Govt of NCT of Delhi)29, the Hon’ble Apex Court

has dealt with sentencing jurisprudence at length and opined that the principles of

sentencing evolved by this Court over the years, though largely in the context of the death

penalty, will be applicable to all lesser sentences so long as the sentencing Judge is vested

with the discretion to award a lesser or a higher sentence.

2.15 Maximum punishment is to be given in rarest of rare cases when manner of offence

is brutal, motive is to gain money-property, but if the offence is committed in one time

anger, emotional disturbance, it is a mitigating circumstance. In the present case, these

facts have not been looked into by the Trial Court.

2.16 Therefore the Trial Court having ignored all the above stated facts and the

determinants, the above referred judicial precedents and well settled guidelines and

principles, has mechanically and arbitrarily proceeded, granting thereby such an

excessive sentence making it highly inadequate and unjust.

29
AIR 2013 SC 2342.

Page | 24
 MEMORIAL ON BEHALF OF THE APPELLANT

III. WHETHER THE HIGH COURT HAD MADE AN ERRONEOUS DECISION?

It is humbly submitted as follows–

3.1 That, the HC had made an erroneous decision by reason that it had affirmed the already

erroneous decision of the Trial Court, the error which was apparent on the face of the

record, while ignoring the important facts and considerations by which the appellant-

accused had all probability of succeeding in appeal. It is the case of an error upon an error

thus, resulting in substantial/grave error.

3.2 Following are the important facts which neither of the Courts below has appreciated:

i. There was no intention to kill and the act took place in fit of anger.

ii. None of the victim of this case had died.

iii. The manner in which the offence was committed was not brutal or inhuman and

as such it was not Grave.

iv. The offender has no previous criminal record.

v. In cases of attempt to murder, generally lesser punishment than Imprisonment for

Life is awarded for the reason that it is undoubtedly lesser act than successfully

commissioned offence of murder and Imprisonment for Life is the rule in Murder

Cases.

Therefore, both the Courts below erred in awarding “life imprisonment” to the appellant

insofar as it relates to an offence punishable u/s 307 IPC.

Page | 25
 MEMORIAL ON BEHALF OF THE APPELLANT

3.3 A significant thing to note is that underlying principle of our sentencing jurisprudence is

reformation30 and another significant observation to note is that the courts while imposing

sentence must take into consideration the principles applicable thereto. It requires

application of mind. The purpose of imposition of sentence must also be kept in mind.31

In the present case the theory of reformation which is primarily followed by the justice

system in India while sentencing, has been completely kept aside and ignored by the HC.

3.4 Further, it is pertinent to note a remarkable observation of this court in Gopal Singh v.

State of Uttrakahand32 in para 18, the relevant portion of which is as follows–

“18. ………Neither the personal perception of a Judge nor self-adhered

moralistic vision nor hypothetical apprehensions should be allowed to have

any play. For every offence, a drastic measure cannot be thought of.

Similarly, an offender cannot be allowed to be treated with leniency solely

on the ground of discretion vested in a Court. The real requisite is to weigh

the circumstances in which the crime has been committed and other

concomitant factors which we have indicated hereinbefore and also have

been stated in a number of pronouncements by this Court. On such

touchstone, the sentences are to be imposed. The discretion should not be in

the realm of fancy. It should be embedded in the conceptual essence of just

punishment.”

3.5 A confirming judgment need consider the contentions urged before the court and record

30
Gurdev Singh v. State of Punjab, (2003) 7 SCC 258.
31
State of Punjab v. Prem Sagar, (2008) 7 SCC 550.
32
(2013) 7 SCC 545.

Page | 26
 MEMORIAL ON BEHALF OF THE APPELLANT

reasons for agreeing with the order under appeal.33 The Hon’ble SC has also observed

that on a plain requirement of justice, the High Court while dealing with a first appeal

against conviction and sentence is expected to, howsoever briefly depending upon the

facts of the case, consider and discuss the evidence and deal with the submissions raised

at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential

jurisdiction under its appellate powers.34

3.6 Following are some cases among many where this court had set aside the orders of the

respective High Courts by showing its dissatisfaction for non-application of mind by the

respective HC while sentencing–

1) In State of Andhra Pradesh v. Polamala Raju & Rajarao35, Three judge bench of

the Apex Court set aside the judgment of the High Court for non-application of mind

in reducing the sentence in a mechanical manner. The HC reduced the sentence u/s

376 IPC from Ten years’ R.I. to Five years’ R.I. without recording any reasons for the

same.

2) In State of Madhya Pradesh v. Bablu Natt36, the Apex Court expressed

dissatisfaction for non-application of mind by the HC and set aside its order

converting the sentence of the accused u/s 366/377 IPC for Seven-Seven years’ R.I.

to that of already undergone for the period of Four years and Two months. And also

held that mere existence of discretion by itself does not justify its exercise. Discretion

in awarding sentence should be exercised in a justified manner.

33
State of Uttar Pradesh v. Kamarujjama, (2002) 3 SCC 342.
34
Ishvarbhai Fuljibhi Patni v. State of Gujarat, 1995 (1) SCC 178; 1995 SCC (Cri.) 222.
35
(2000) 7 SCC 75.
36
(2009) 2 SCC 272.

Page | 27
 MEMORIAL ON BEHALF OF THE APPELLANT

3) In State of Punjab v , the accused were sentenced to One year of

Imprisonment by the Trial Court and the HC released them on probation to which the

SC expressed its dissatisfaction and held that HC was completely at error while doing

so and set aside the order of the HC sentencing them to Six months’ simple

imprisonment.

On many occasions it has been held by this Hon’ble Court that undue sympathy to

impose inadequate sentence would do more harm to the justice System38 and equally, a

punishment should not be disproportionately excessive39. So, in light of these well settled

principles, where in the above referred cases, the Apex Court held the High Courts to be

erroneous in showing undue sympathy to the accused while sentencing, likewise in the

present case, where it has been attempted to prove that the awarded sentence is excessive

and inadequate, HC was at error while affirming the Orders of the Trial Court.

3.7 Further, it is well established that the matter of issuing certificate under Art. 134(1)(c) is

within the discretion of the High Court but at the same time it is well established that HC

is bound to grant Certificate under Art. 134(1)(c) of COI once a question of law is said to

arise. In consonance of these establishments with the present case it is submitted that as it

has been attempted above to prove that the Trial Court has ignored important facts and

circumstances of the case and awarded the quantum of sentence which is as a rule

awarded in another offence, offence of Murder-the heinous one, the HC itself had a

substantial question of law put before it. Although HC is all competent and qualified to

answer such questions of law, it should have issued a Certificate under the said provision

so that such substantial question be further put up before the Apex Court and let the Apex

37
(2008) 7 SCC 550.
38
Hazara Singh v. Raj Kumar and Ors, (2013) 9 SCC 516.
39
Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545.

Page | 28
 MEMORIAL ON BEHALF OF THE APPELLANT

Court finally decide it to the full satisfaction of the parties and for also that nothing

remains unresolved or unanswered and a detailed precedent is set out. But the HC having

mechanically affirmed the erroneous decision of the Trial Court and arbitrarily having not

issued a certificate of fitness, had committed a ‘Grave Error’ ultimately leading to

‘Miscarriage of Justice’.

3.8 Therefore, there are many unsatisfactory features in the judgment of the Trial Court

which give rise to a fair assumption that the appellant was likely to succeed in the appeal

but, which had been ignored by the HC, hence, leading to an erroneous decision.

Page | 29
 MEMORIAL ON BEHALF OF THE APPELLANT

IV. WHETHER THE BAIL SHOULD BE GRANTED BY REDUCING THE

APPELLANT’S LIFE IMPRISONMENT?

It is humbly submitted as follows–

4.1 In light of the fact that Indian Courts are, and for the purpose of this case, particularly the

Supreme Court, is heavily over burdened with cases and that, that it has become very

difficult for this Court to devote its time to the tasks which primarily and exclusively are

to be done by it, it is quite well understood and accepted that appeal by the appellant is

not going to be heard for the next two-three years, thus, leading to unreasonable delay, it

is humbly submitted that appellant is entitled to get the Bail, which is further supported

by following arguments–

4.2 The most leading case in which the questions regarding release of convicts/accused

persons on bail were determined, is of Kashmira Singh v. State of Punjab40, which is a

‘most significantly cited, referred to and relied upon precedent’ of this Court. The

precedent set out by judgment of SC in this case has the most significant bearing to the

present case. The Apex Court in this case ruled out that so long as this Court is not in a

position to hear the appeal of an accused within a reasonable period of time, the Court

should ordinarily, unless there are cogent grounds for acting otherwise, release the

accused on bail in cases where special leave has been granted to the accused to appeal

against his conviction and sentence.

4.3 Article 21 confers a fundamental right on every person not

liberty except in accordance with the procedure prescribed by law but that procedure

should be reasonable, fair and just. Now obviously procedure prescribed by law for

40
(1977) 4 SCC 291.

Page | 30
 MEMORIAL ON BEHALF OF THE APPELLANT

depriving a person of his liberty cannot be reasonable, fair or just, unless that procedure

ensures a speedy trial for determination of the guilt of such person. No procedure which

does not ensure a reasonably quick trial can be regarded as reasonable, fair or just, and it

would fall foul of Article 21.41

4.4 It has been observed by this Court in Gudikanti Narasimhulu and Ors. v. Public

Prosecutor, High Court of Andhra Pradesh42 that Personal liberty deprived when bail

is refused is too precious a value of our constitutional system recognized under Art. 21,

that curial power to negate it is a great trust exercisable, not casually but judicially, with

lively concern for the cost to the individual and the community. To glamorise

impressionistic orders as discretionary may, on occasions, make a litigative gamble,

decisive of a fundamental right. After all, personal liberty of an accused or convict is

fundamental, suffering lawful eclipse only in terms of "procedure established by law".

The last four words of Art. 21 are the life of that human right. What then, is 'judicial

discretion' in this bail context? In the elegant words of Benjamin Cardozo-

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure.

He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of

goodness. He is to draw his inspiration from consecrated principles. He is not to yield to

spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a

discretion informed by tradition, methodized by analogy, disciplined by system, and

subordinated to 'the primordial necessity of order in the social life'. Wide enough in all

conscience is the field of discretion that remains."

41
Maneka Gandhi v. Union of India, AIR 1978 SC 597; Smt. Akhtari Bi v. State of Madhya Pradesh, AIR
2001 SC 1528; (2001) 4 SCC 355.
42
(1978) 1 SCC 240; (1978) 2 SCR 371.

Page | 31
 MEMORIAL ON BEHALF OF THE APPELLANT

4.5 It is pertinent to note that the significance and sweep of Art. 21 make the deprivation of

liberty a matter of grave concern and permissible only when the law authorizing it is

reasonable, even-handed and geared to the goals of community good and State necessity

spelt out in Art. 19. Reasonableness postulates intelligent care and predicates that

deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal

interests of justice-to the individual involved and society affected.43

4.6 Further, Inordinate delay in hearing on substantive appeals because of Court’s inability to

do so would be extremely relevant factor for grant of bail, and undoubtedly, it would be a

good reason to state that there is no practicable possibility of expeditious hearing of the

appeal.44 Even after the period of 1 year of the pendency of the appeal, the issue of

suspension of sentence and release on bail would have to be considered on the basic

ground of delay in the light of the inability of the Court itself to hear and dispose of the

appeal45 and delay in taking up of criminal appeals for final hearing and adjudication can

be a factor for consideration of suspension of sentence, if the appellant has remained in

custody in connection with the concerned trial for a reasonably long time.46

4.7 It is very significant to note that a delay of even one year in commencement of the trial is

bad enough; how much worse could it be when the delay, is as long as 3 or 5 or 7 or even

10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that

delays in trial by itself constitutes denial of justice.47

43
Babu Singh and Ors v. The State of Uttar Pradesh, (1978) 1 SCC 579.
44
Ubed, son of Latifur Rahman v. The State of Bihar, 30 January, 2017, Criminal Appeal (SJ) No.167 of
2015
45
Anurag Baitha v. State of Bihar, AIR 1987 Patna 274.
46
Surinder Singh alias Shingara Singh v. State of Punjab, (2005) 7 SCC 387.
47
Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360.

Page | 32
 MEMORIAL ON BEHALF OF THE APPELLANT

4.8 Where a question before the court was that how the issue of inordinate delay in the

hearing of the substantive appeals can be hermetically sealed out of consideration even

for the purpose of suspension of sentence under Section 389 of the Code, the Full Bench

of the Court held that neither principle nor precedent could be cited for any such

constricted view rather even under Section 389 of the Cr.P.C., inordinate delay in hearing

of substantive appeals, because of the Court’s own inability to do so, would be extremely

relevant factor for grant of bail inasmuch as Section 389 of the Cr.P.C. mentions

necessity of recording of reasons for suspending sentence and undoubtedly it would be a

good reason to state that there is no practicable possibility of expeditious hearing of the

appeal.48

4.9 Moreover, notwithstanding the fact that prisoner’s application for suspension of sentence

and his consequent release on bail cannot be allowed on merit or has been rejected on

merit, the Appellate Court still retains the power to suspend the sentence for such period

as the Court may consider imperative, particularly, when the Court finds that such

suspension of sentence would make the right to life, guaranteed under Article 21 of the

Constitution of India, meaningful.49

4.10 It was therefore, directed by the Court that life convicts, who have undergone at

least five years of imprisonment of which at least three years should be after conviction,

should be released on bail pending the hearing of their appeals should they make an

application for this purpose.50

48
Anurag Baitha v. State of Bihar, AIR 1987 Patna 274.
49
Chandra Shekhar Bharti v. State of Bihar, decided on 27 January 2014.
50
Dharam Pal vs State Of Haryana, 1999 (4) RCR (Cri.) 600.

Page | 33
 MEMORIAL ON BEHALF OF THE APPELLANT

4.11 Further the Apex Court in Suddu Kumar v. State of Bihar5 , in para 19 observed

as follows–

“19. We are, further of the view that it would be a sound practice if a prayer

for suspension of sentence and release of an appellant on bail, convicted of

a capital crime and sentenced to undergo imprisonment for life, is

considered favourably and he is ordinarily allowed bail if he has completed

seven years of incarceration in connection with such case before conviction

and after conviction, taken together when his appeal is not likely to be heard

on merits in near future, on the ground of possible delay in the disposal of

the appeal.......”

4.12 A significant proposition laid down by this Court in Sanjay Chandra v. CBI52, in

respect of granting or refusing Bail is as follows-

“It is, no doubt, true that the nature of the charge may be relevant, but at the same time,

the punishment to which the party may be liable, if convicted, also bears upon the issue.

Therefore, in determining whether to grant bail, both the seriousness of the charge and

the severity of the punishment should be taken into consideration. The grant or refusal to

grant bail lies within the discretion of the Court. The grant or denial is regulated, to a

large extent, by the facts and circumstances of each particular case. But at the same time,

right to bail is not to be denied merely because of the sentiments of the community

against the accused. The primary purposes of bail in a criminal case are to relieve the

accused of imprisonment, to relieve the State of the burden of keeping him, pending the

trial, and at the same time, to keep the accused constructively in the custody of the Court,

51
Criminal Appeal (DB) No.583 of 2015.
52
2011 (4) SCC 2913.

Page | 34
 MEMORIAL ON BEHALF OF THE APPELLANT

whether before or after conviction, to assure that he will submit to the jurisdiction of the

Court and be in attendance thereon whenever his presence is required.”

4.13 Since it has been attempted to prove above that Trial court has acted outside the

judicial discretion and went on to impose arbitrary sentence and HC also erred in

affirming the same while overlooking and ignoring the error of the Trial Court and that

the victim have also survived, taking into consideration these facts, it is submitted that

Orders of both the Courts below are liable to be set aside and it shall be just and fair for

Hon’ble SC to sentence the appellant for Ten years’ R.I. with fine u/s 307 Part I IPC.

Therefore, since appellant-accused has already undergone custody of 10-12 years,

appellant is entitled to be granted Bail and in the interest of justice, the sentence is liable

to be reduced to as ‘already undergone’ and the appellant is liable to be set at liberty by

upholding his conviction.

Page | 35
 MEMORIAL ON BEHALF OF THE APPELLANT

PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly prayed before this Hon’ble Court that–

a) The Leave be granted to the appellant;

b) The Power exercised by the Trial Court to grant the given quantum of punishment be

declared to be arbitrary and the quantum of punishment granted thereby to be

inadequate, and excessive and accordingly reduce the sentence to a lesser sentence

which the Hon’ble Court considers to be proportionate and adequate;

c) The order of the Hon’ble High Court affirming the order of the Trial Court be also

declared to be erroneous and accordingly be set aside;

d) The Bail be granted to the appellant; and

e) The appellant’s sentence be reduced to ‘already undergone’ and he be, thereby, set at

liberty.

And any other relief that the Hon’ble Court may be pleased to grant in the interests of Justice,

Equity and Good conscience.

For this act of kindness, the appellant shall be duty bound forever pray.

Sd/-

(Counsels for the Appellant)

Page | 36
 MEMORIAL ON BEHALF OF THE APPELLANT

VERIFICATION

I, Neeraj, s/o .........................., the above named Appellant/Petitioner, do hereby solemnly

verify that the contents of para nos. 1 to 5 are correct and true to the best of my knowledge

and contents of para 6 are based on legal advice from my Advocate, which I believe to be

true.

Place.................... Sd/-

Date..................... Appellant/Petitioner

Page | 37